The Chief Justice, Searching for Middle Ground

Chief Justice John G. Roberts Jr., left, and Justice Stephen G. Breyer at the Capitol for the State of the Union address on Tuesday.CreditCreditBrendan Smialowski/Agence France-Presse — Getty Images

This column is not — repeat, not — going to argue that our conservative chief justice, John G. Roberts Jr., has morphed into a moderate. With important decisions looming in the remainder of a Supreme Court term that has been unusually quiet so far, there’s little reason to expect surprises from the chief justice’s votes on the constitutionality of partisangerrymanders or conscience-based opt-outs from anti-discrimination laws. I’m confident that he remains staunchly opposed to affirmative action and equally committed to elevating the place of religion in the public square. And I haven’t forgotten his perfervid opinion dissenting from the court’s 2015 decision declaring a constitutional right to same-sex marriage.

Nonetheless, there’s something going on at the court that bears closer watching than it has generally received. Three times in recent weeks, we have seen Chief Justice Roberts on one side and the reliably right-wing triumvirate of Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch on the other. That’s not three times out of dozens: The court has issued only eight opinions so far this year, four of them unsigned, along with a handful of what the court calls “miscellaneous orders.” These can be as routine as setting a briefing schedule or as momentous as granting a stay of execution to a death-row inmate.

It was the latter such action last week that calls for taking stock. The court granted a last-minute stay of execution to Vernon Madison, a 67-year-old who has spent the last 32 years on Alabama’s death row for murdering a police officer. He is now disabled by strokes and suffers from vascular dementia that has erased the memory of his crime, although he is evidently still able to understand that the state plans to put him to death for something he did. Supreme Court precedents dating to the 1980s make it unconstitutional to execute someone who lacks the mental capacity to understand the relationship between his crime and his death sentence.

Mr. Madison would seem to fall within that zone, even if not squarely in its center. His case has made numerous trips to the Supreme Court. He came close to execution in May 2016, after the United States Court of Appeals for the 11th Circuit had granted a stay of execution that Alabama then asked the justices to vacate. Four justices — Chief Justice Roberts and Justices Thomas, Alito, and Anthony M. Kennedy — voted to grant the state’s request. But five votes are required to grant or vacate a stay, and three months after the death of Justice Antonin Scalia, the court was tied at 4 to 4, and the stay remained in place, with the case returned to the lower courts for more proceedings. Eventually, Mr. Madison ran out of appeals, and Alabama set Jan. 25 as a new execution date.

But then, Mr. Madison’s lawyer, Bryan A. Stevenson of the Equal Justice Initiative, raised an additional issue in seeking a new stay and full Supreme Court hearing. Mr. Madison’s jury in 1985 had recommended life in prison rather than a death sentence. But Alabama law provided for judicial override, allowing the state’s elected judges to reject a jury’s recommendation and, as happened in this case, impose a death sentence. An outlier among the death-penalty states, Alabama adhered to this much-criticized practice until last year, when its legislature abolished judicial override — but only prospectively. Mr. Madison’s new appeal argues that it would be unconstitutionally “arbitrary and capricious” to execute an inmate who was sentenced to death by a procedure that the state now disavows.

Perhaps that new argument struck Chief Justice Roberts as worthy of at least further consideration; the unsigned one-paragraph order granting the stay offered no explanation and noted only that “Justice Thomas, Justice Alito and Justice Gorsuch would deny the application.” The court has not yet decided whether to hear the new appeal (an action that requires only four votes). If the justices decide not to hear the case, the stay of execution will automatically expire.

A case earlier in January also concerned the death penalty, although less directly. A Georgia death-row inmate, Keith Tharpe, convicted of murdering his sister-in-law, had argued in the lower federal courts that a racially biased juror had tainted the jury deliberations so fundamentally as to require issuing a writ of habeas corpus and ordering a new trial.

Mr. Tharpe is black, as was his victim. The white juror, Barney Gattie, made extremely demeaning remarks about African-Americans including, in a sworn affidavit, the comment that “after studying the Bible, I have wondered if black people even have souls.” Mr. Tharpe appealed the 11th Circuit’s conclusion that the impact of that one juror on the outcome of the trial was not sufficiently “substantial and injurious” to entitle Mr. Tharpe even to proceed with his habeas corpus petition.

In September, the court granted Mr. Tharpe a stay of execution, with Justices Thomas, Alito and Gorsuch dissenting. The justices then went on to the question of whether to hear the appeal. After listing the case, Tharpe v. Sellers, for discussion at nine weekly closed-door conferences, the court on Jan. 8 overturned the 11th Circuit’s decision and ordered the appeals court to reconsider whether to let Mr. Tharpe proceed with his habeas petition. The brief opinion, quoting the juror’s affidavit and calling it “remarkable,” was unsigned.

The dissenting opinion, joined by Justices Alito and Gorsuch, was signed by Justice Thomas. But in its 13 pages, which dismissed the majority opinion as “a useless do-over” and “ceremonial hand-wringing,” I’m sure I detected the distinctive voice of the newest justice. This sentence, “The responsibility of courts is to decide cases, both usual and unusual, by neutrally applying the law,” mirrors the condescending civics lesson that Justice Gorsuch administered to Justice Ruth Bader Ginsburg, of all people, in a dissenting opinion last June. “If a statute needs repair,” he informed the seven members of Justice Ginsburg’s majority in Perry v. Merit Systems Protection Board, “there’s a constitutionally prescribed way to do it. It’s called legislation.” Only Justice Thomas joined that dissent.

My third and final data point came last week, in one of the four signed opinions the court has issued so far this term. The procedurally complexities of this case, Artis v. District of Columbia, nearly defy simplification, but that’s not the point here. It was not on anyone’s radar screen as a first-order case — or second- or third-order case, for that matter. Suffice it to say that it concerned the time limits for refiling a case in state court after dismissal by a federal court. A federal law governs such a situation, with ambiguous wording that posed the question of whether the state-court plaintiff had 30 days from the dismissal to refile in state court, or 30 days plus whatever the state’s statute of limitations would ordinarily have been had the clock not been stopped while the federal portion of the case was pending, in this instance apparently three years.

This hardly sounds like the kind of issue to provoke a 5-to-4 split on the Supreme Court. So why on earth did it? With an opinion by Justice Ginsburg that was joined by Chief Justice Roberts and Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, the majority engaged in a thoroughly conventional exercise of statutory interpretation and came up with the more generous reading of the statute.

Justice Gorsuch wrote a dissenting opinion that was joined by Justices Kennedy, Alito and Thomas. It basically announced that the end of the world was at hand. The decision to stop the clock on the running of a state’s statute of limitations was an insult to the states, Justice Gorsuch declared, “no small departure from our traditional principles of federalism.”

He ended his 18-page opinion with a history lesson. “We’ve wandered so far from the idea of a federal government of limited and enumerated powers that we’ve begun to lose sight of what it looked like in the first place,” he informed his colleagues. “If the federal government can now, without any rational reason, force states to allow state law causes of action in state courts even though the state law limitations period expired many years ago, what exactly can’t it do to override the application of state law to state claims in state court? What boundaries remain then?”

The author of a dissenting opinion in the Supreme Court has two choices. One is to proclaim that all is lost. That approach serves as a declaration of war that illuminates the defeat on a giant billboard and leaves no room for compromise the next time around, and there is always a next time. The other choice is to minimize the loss by sending the message that nothing much has happened here, saving the losing side’s fire for the inevitable next round — or for things that really count.

I can only guess that Chief Justice Roberts, if he was tempted for a split second to view this little case as the dissent saw it, recoiled from Justice Gorsuch’s superheated language. What boundaries remain, indeed? My sense is that the chief justice reads this heavily freighted political moment as a time to avoid spending the Supreme Court’s limited capital needlessly, in contrast to his junior colleague’s evident desire to make as much noise as he can.

Maybe I’m wrong about that. But there’s a cliché in journalism that it takes three to make a trend, and I’ve counted to three in just the past three weeks. If I’m right, there’s a realignment, however subtle, in progress at the court now that portends a future more hopeful, or at least more interesting, than appeared likely even a few months ago.